PFAS Update: Current State-by-State Groundwater Regulations

Bryan Cave Leighton Paisner
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Many states have expressed frustration with the lack of federal cleanup standards for per- and polyfluoroalkyl substances (“PFAS”) in groundwater, and have started the process of regulating PFAS in groundwater themselves.  As a result, states have adopted a patchwork of regulations and guidance standards that present significant challenges to impacted industries.  This client alert focuses on the different state regulations regarding the guidance, notification, and cleanup levels for PFAS – typically perfluorooctanesulfonic acid (“PFOS”) and perfluorooctanoic acid (”PFOA”)  – in groundwater.

I. State Regulations

The snapshot provided below is current as of February 24, 2021, but it is important to note that this is a rapidly developing regulatory space.  Some states, such as North Carolina, Pennsylvania, Rhode Island, and Wisconsin have proposed groundwater regulations for PFAS which may take effect later this year, and more state actions, as well as possible federal action, are expected to be announced this year.  All of which means that if your business is assessing your current risk, or conducting due diligence on a property, and there is the possibility of ongoing or legacy PFAS use or contamination, please feel free to contact us to discuss the most recent regulations in the applicable jurisdiction(s).

Participating States Concentration Level Type of Regulation Adoption Status
 Michigan  6 ppt PFNA (Clean Up) Regulation and Related Information
 Michigan  8 ppt PFOA (Clean Up) Regulation and Related Information
 New Hampshire  11 ppt PFNA (Clean Up) Regulation and Related Information
 New Hampshire  12 ppt PFOA (Clean Up) Regulation and Related Information
 New Jersey  13 ppt PFNA and PFOS (Clean Up) Regulation and Related Information
 New Jersey  14 ppt PFOA (Clean Up) Regulation and Related Information
 New Hampshire  15 ppt PFOS (Clean Up) Regulation and Related Information
 Michigan  16 ppt PFOS (Clean Up) Regulation and Related Information
 New Hampshire  18 ppt PFHxS (Clean Up) Regulation and Related Information
 Massachusetts  20 ppt (Stated in the regulation as .02 ppb)  6 PFAS Substances combined — PFOA, PFOS, PFHxS, PFNA, PFHpA, and PFDA (Clean Up)  Regulation and Related Information
 Vermont  20 ppt (Stated in the regulation as .02 µg/L)  5 PFAS substances combined:  PFHpA, PFHxS, PFNA, PFOS and PFOA (Notification)  Regulation and Related Information
 Michigan  51 ppt  PFHxS (Clean Up)  Regulation and Related Information
 Colorado  70 ppt Site-specific Standards for PFOA and PFOS (Clean Up)  Site-Specific Groundwater Quality Standard
 Delaware, Montana, and Rhode Island  70 ppt  Follow the EPA Health Advisory Level: PFOS and PFOA combined (Guidance and Notification)  

Delaware:  Guidance Policy

Montana:  Guidance Standard

Rhode Island: Notification Standard

 Texas  290 ppt, etc.  16 Different PFAS Substances (Clean Up)  Protective Concentration Levels
 Michigan  370 ppt  HFPO-DA (Clean Up)  Regulation and Related Information
 Michigan  420 ppt  PFBS (Clean Up)  Regulation and Related Information
 Illinois  2,000 ppt (stated by the Illinois Pollution Control Agency as 2 ng/L)  PFOA (Guidance)  Regulation (still in draft form) and Related Information
 Illinois  140,000 ppt (stated by the Illinois Pollution Control Agency as 140 ng/L)  PFHxS (Guidance)  Regulation (still in draft form) and Related Information
 Michigan  400,000 ppt  FHxA (Clean Up)  Regulation and Related Information
 Alaska  400,000 ppt (Stated in the regulation as .4 µg/L)  PFOA and PFOS separately (Clean Up)  Regulation (18 AAC 25) and Related Information
 Maine  400,000 ppt (Stated in the regulation as .4 ppb)  

PFOA and PFOS separately (Guidance)

Note:  Maine has both residential and construction standards

 Maximum Exposure Guideline
 Illinois  140,000,000 ppt (stated by the Illinois Pollution Control Agency as 140,000 ng/L)  PFBS (Guidance)  Regulation (still in draft form) and Related Information
 Illinois  560,000,000 ppt (stated by the Illinois Pollution Control Agency as 560,000 ng/L)  PFHxA (Guidance)  Regulation (still in draft form) and Related Information

No regulations:

Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming

 Notification  A corporate representative has to inform the appropriate state official that the groundwater is above the limit.
 Guidance  These levels are not binding limits, but they can serve as the basis for regulatory action, and are a useful tool for due diligence and risk   assessment.
 Clean Up  Investigation and remediation is usually required when concentration levels exceed the clean-up threshold.  This is usually expressed by   groundwater quality standards that identify specific clean-up criteria.

II. Additional Considerations

Without a federal PFAS standard, the various states have enacted a wide range of regulations, notifications, or advisories.  For example, for PFAS substances in groundwater, the smallest concentration is 6 ppt (Michigan; PFNA only) and the largest value is 560,000,000 ppt (Illinois; PFHxA only).  For consistency, the following chart illustrates the discrepancies in the concentration levels only for PFOA and/or PFOS.

III. Conclusion

Businesses operating in these 13 states should consider whether they currently use or discharge any of the regulated PFAS compounds.  In addition, owners of property with legacy PFAS use, and prospective purchasers of commercial and industrial properties, should use the groundwater quality standards as part of their due diligence processes.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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